Net Neutrality, What Else?

Wim Nauwelaerts PartnerHunton & Williams

2

WHAT IS NET NEUTRALITY?

3

WHAT IS NET NEUTRALITY?

“Net Neutrality is about keeping the Internet open and without discrimination. Put simply, Net Neutrality means every customer should be able to access every service, and every service should be able to access every customer. It is the Internet Service Providers’ responsibility to make sure they operate so that that happens”

Prof. Sir Tim Berners-Lee

4

EU PERSPECTIVE TO NET NEUTRALITY

• Plays a key role in the EU’s common vision for Internet

Governance

• Growing consensus that Net Neutrality should be

regulated at EU-level

– Proposed Telecoms Single Market Regulation-

COM(2013)0627 (“TSMR”)

• Includes definition and specific provisions on Net

Neutrality (art. 23)

• EU Parliament has agreed on compromise text; Council

expected to take a final position by end of 2014?

5

Key Elements of Net Neutrality in the proposed TSMR: 

– ISPs and end-users may agree to limit data volumes or speeds

– ISPs may not restrict end-users’ right to internet access by blocking, slowing down, altering, degrading or discriminating against specific content, applications or services

– Except if necessary to apply Traffic Management measures

EU PERSPECTIVE TO NET NEUTRALITY

6

Key Elements of Net Neutrality in the proposed TSMR: 

• Traffic Management measures shall be transparent, non-discriminatory, proportionate and necessary to:

– Implement a court order

– Preserve the integrity and security of the network, services provided via the network, and end-users' terminals

– Prevent or mitigate the effects of network congestion

EU PERSPECTIVE TO NET NEUTRALITY

7

Key Elements of Net Neutrality in the proposed TSMR:

• Without prejudice to the EU Data Protection Directive, Traffic Management measures shall:

– Only entail such processing of personal data that is necessary and proportionate to achieve the purposes, and

– Be subject to the ePrivacy Directive, in particular with respect to confidentiality of communications

EU PERSPECTIVE TO NET NEUTRALITY

8

EU Member State experience with Net Neutrality

• Legislative proposals in e.g. Belgium; France

• Legal provisions in the Netherlands; Slovenia

– Confusion on scope of the law in the Netherlands: only ISPs or also other service providers?

– “Soft” neutrality versus “hard” neutrality

EU PERSPECTIVE TO NET NEUTRALITY

NET NEUTRALITY CONSIDERATIONS

9

Right to internet access

Network protection/integrity

Data “explosions””

Innovation interference

Privacy & data protection

Content discrimination

Price discrimination

Quality of service

10

NET NEUTRALITY AND EU PRIVACY / DATA PROTECTION

How do EU rules on privacy and data protection apply?  

Possible Scenario 1: Restriction of end-users’ rights; no

Traffic Management exception applies

– Blocking, slowing down, altering, etc. = processing of

personal data under EU data protection rules?

– ISP = data “controller”?

– Compliance with fundamental data protection

principles

• Legal basis for processing?

11

How do EU rules on privacy and data protection apply?

Possible Scenario 2: Restriction of end-users’ rights and

Traffic Management exception applies

– Traffic Management measures = processing of

Personal Data under EU data protection rules  

– ISP = data controller

– Compliance with fundamental data protection

principles

NET NEUTRALITY AND EU PRIVACY / DATA PROTECTION

12

Compliance with fundamental data protection principles

– Legal basis for processing

• Legitimate interest?

• End-user consent: only if results of data processing are

used for secondary purposes?

– Transparency

– Purpose limitation Interpretation of

– Proportionality “Necessary”?

NET NEUTRALITY AND EU PRIVACY / DATA PROTECTION

13

Specific issues associated with consent as a

legal basis

– Consent must meet certain conditions:

• Free: is alternative access without TM measures

realistic?

• Specific: but flexibility towards TM changes?

• Informed indication of end- user’s wishes: “user

concerned” vs. “all users involved” ?

NET NEUTRALITY AND EU PRIVACY / DATA PROTECTION

14

Specific issues associated with the

proportionality (data minimization) principle

– Only monitoring/filtering of personal data that

are adequate, relevant & not excessive in

relation to the purpose of processing

• What personal data are “suitable”?

NET NEUTRALITY AND EU PRIVACY / DATA PROTECTION

15

Specific issues associated with legal requirements

to keep personal data secure

– Data breach notification duties under the

ePrivacy Directive and Regulation 611/2013

• Duty to notify competent national authority within 24H

• Duty to notify end-users if likely adverse effect on

their personal data or privacy

– Who’s affected?

NET NEUTRALITY AND EU PRIVACY / DATA PROTECTION

16

• EU Parliament & Council to consider the

scope of Net Neutrality requirements (in

proposed TSMR)

• Further clarifications needed regarding

– Monitoring of speeds/data volumes

– Legal grounds for TM measures

– Application of proportionality (data minimization)

principle

NET NEUTRALITY IN THE EU: GOING FORWARD